Appeal decision letter by p0mk8


									                                            OUR REF: LGR 85/18/134
                                            23 FEBRUARY 1999
515   INDEX


REGULATIONS 1974 (the 1974 regulations)
REGULATIONS 1997 (the 1997 regulations)

1. I refer to your letter of 5 November 1998 in which you appeal
(under regulation 102 of the 1997 regulations) to the Secretary of
State for the Environment, Transport and the Regions against the
decision of Mr XXX, the Appointed Person.
2. The Appointed Person upheld the decision of XXX County
Council (the council) to reduce on your 65th birthday your local
government pension scheme (LGPS) pension benefits due to the
provisions of the National Insurance Acts. You maintain that as
such provisions are no longer contained in the 1997 regulations
which came into force before your 65th birthday it is not lawful that
they should apply to you.
3. The Secretary of State’s powers under regulations 102 and
103 of the 1997 regulations are to reconsider the original
disagreement referred to the Appointed Person under regulation
100. This regulation refers to a matter relating to the LGPS, which
effectively means whether the LGPS regulations have been
correctly applied in the circumstances.
4. The question for decision: The question for decision by the
Secretary of State is whether the 1997 regulations or earlier
regulations apply to you in deciding whether your pension should
be reduced when you reached state pensionable age.
5. The Secretary of State has considered all the representations
and evidence. Copies of all documents supplied by the Appointed

                                                         LGR 85/18/134
Person have been sent to you under cover of the department’s letter
of 14 December 1998.
6. Secretary of State’s decision: The Secretary of State has
taken into account the appropriate regulations. He finds that the
1997 regulations do not apply to you and that the question whether
your pension fell to be reduced on attaining the state pensionable
age of 65 years had to be considered under the National Insurance
modification provisions of the 1974 regulations. His decision
confirms that made by the Appointed Person. The Secretary of
State’s reasons and the legislative provisions which he considers
apply in your case are set out in the annex to this letter, which forms
an integral part of this decision. He is acting judicially and has no
power to modify the way the legislative provisions apply to the
facts of the case. Having made his decision he has no power to alter
it but you may refer the matter to the Pensions Ombudsman or to
the High Court. Because of this the Secretary of State’s officials
cannot discuss the case further.
7. This completes the second stage of the internal disputes
resolution procedure. The Pensions Advisory Service (OPAS) is
available to assist members and beneficiaries in connection with
difficulties which they have failed to resolve. Their address is 11
Belgrave Road, London, SW1V 1RB (telephone number 0171 233

8. The Pensions Ombudsman may investigate and determine any
complaint or dispute of fact or law in relation to the LGPS made or
referred in accordance with the Pensions Schemes Act 1993. His
address is 11 Belgrave Road, London, SW1V 1RB (telephone
number 0171 834 9144).

                                                          LGR 85/18/134
1. The following evidence has been received and taken into
     (a) from you: letters dated 5 November and 18
     December 1998;
     (b) from the Appointed Person: letter dated 2
     December 1998 (with the enclosures listed in the
     department’s letter of 14 December; and
     (c) from the council: facsimile dated 22 February 1999
     and enclosures copies of which are attached.
2. From the evidence submitted the following relevant points
have been noted:
     (a)   your date of birth is 23 July 1933;
     (b) on 18 March 1985 your pension benefits were
     brought into payment; and
     (c) on 23 July 1998 the council reduced your pension
     benefits by £83.54 per year under the National Insurance
     Modification provisions in the 1974 regulations.
3. In your appeal to the Appointed Person you complained that
as there was no longer a requirement to reduce pensions under the
1997 regulations it was not necessary for the council to impose the
reduction. You asked him to use his discretion and dispense with
the reduction in your case. The Appointed Person found that the
reduction applied to all pensioners who were members of an
occupational pension scheme before 31 March 1980, that the
council was compelled by the provisions of LGPS regulations to
reduce your pension, that he did not have any discretion in the
matter and although the 1997 regulations no longer contained
National Insurance modification provisions they did not apply to
you as you retired before they came into force.

                                                       LGR 85/18/134
4. Up to 31 March 1998 certain individuals leaving the LGPS
were subject to a reduction in their annual pension on reaching state
retirement age. This reduction was a result of a National Insurance
modification which took account of the integration between an
employer’s contracted out occupational pension scheme and the
state flat rate retirement pension. As part of changes and
improvements made to the LGPS from 1 April 1998, individuals
with periods of active membership, periods for which contributions
are paid, would no longer have National Insurance modification
reduction applying from their state pension age. As with other
improvements to public service pension schemes it is a matter of
general government policy that improvements are not backdated but
introduced for future membership so that costs of such
improvements are met by members and employers.
5. The Secretary of State has considered all the evidence. He
notes that it is not disputed the way the National Insurance
modification has been applied in your case. Rather you contend
that the 1997 regulations apply to you. The Secretary of State takes
the view that as you retired and ceased making contributions before
the 1997 regulations the benefits of changes to the scheme cannot
apply in your case. He finds that the council were correct to reduce
your pension on attaining the age of 65 (state pensionable age). He
therefore dismisses your appeal.

                                                         LGR 85/18/134

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